concurring:
I join in the opinion of Judge Mclff and write only to respond to Justice Russon’s characterization of the standard of review adopted by a majority in this case.
Justice Russon’s opinion suggests that there are only two operative standards of review: One applicable to matters of law, which calls upon this court to redetermine any matter coming before it without granting any deference to the forum below, and the other applicable to questions of fact, which calls upon us to defer to the forum below if there is any substantial evidence to support its action. He characterizes Judge Mclffs position, which describes the principle now before us as one of law, as requiring that, in the future, this court must make a detailed inquiry regarding every aspect of every evaluation practice adopted by the Tax Commission. With all deference, the one-size-fits-all characterization Justice Russon places on the operation of the standard of review applicable to law questions when they are part of a mixed question of law and fact is far too *117simplistic, as we explained in State v. Pena, 869 P.2d 932, 936 (Utah 1994). When an appellate court reviews a determination that involves a mixed question of law and fact, the operative standard of review, i.e., the actual level of scrutiny applied by the appellate court, may vary, even though the ultimate question reviewed involves a statement of the law. On some, we permit a broad range of discretion, see Hansen v. Stewart, 761 P.2d 14, 17-18 (Utah 1988) (granting broad discretion to trial court in deciding whether to grant or deny new trial based on insufficiency of evidence), on others we do not, see State v. Thurman, 846 P.2d 1256, 1269-71 (Utah 1993) (granting narrow discretion to trial court decisions involving consent to search that would otherwise violate Fourth Amendment). The characterization of an issue as a mixed question of law and fact sometimes begins, rather than ends, the inquiry as to how closely the appellate court will scrutinize what the initial forum. has done. Pena, 869 P.2d at 937.
In the present ease, the fact that, as an analytical matter, we conclude that the determination made by the commission is grounded on a question of law—whether the commission may consider contract rents, as opposed to market rents, in the subsidized housing context—says little about the closeness of the scrutiny we will give the commission’s decision on exactly what weight it may give those subsidized contract rents in reaching a fair market value determination, and it says nothing about how we will review the commission’s approach to applying any other valuation methodology. The majority holds only that, in the metaphor of Pena, the broad pasture that the commission is permitted when addressing methods of valuation has boundaries, and one of those boundaries requires that it consider the terms of subsidized contract rents. See id. at 937-38. As for the weight the commission chooses to give this factor, we say only that the question is within the broad pasture accorded it. When such rents differ from market, the commission does not exceed the discretion the law gives it when it decides to place primary emphasis on them in making a valuation.
The fact that labeling a question a matter of law may permit this court to define and, ultimately, to constrict the pasture within which an agency or a trial court is permitted to roam, does not mean that we must do so. For that reason, it does not portend the evils that Justice Russon suggests. As we noted in Pena, there are substantial institutional reasons why appellate courts refrain from substituting their judgment for that of an agency or trial court on mixed questions of fact and law in any particular area, even if they have the power to do so. Id. at 938-40. Those reasons apply with particular force when we are addressing fact-intensive valuation decisions dependent on a multitude of factors and made by an agency that has expertise in an area. Id. at 940. On the other hand, merely because we permit an agency or trial court broad discretion does not mean, as Justice Russon would characterize it, that the standard of review is one appropriate to questions of fact, rather than law. That sort of approach to labeling the question under consideration is result oriented, rather than based on an analysis of the issue being addressed, and serves only to make careful, candid appellate analysis of mixed questions of law and fact more difficult. Carefully exercised self-restraint is the real guardian of the proper relationship between trial and appellate fora, not simple, conclusory labels of “law” and “fact,” labels that history has shown are not capable of standing in the way of an appellate court’s exercising searching review when it thinks it appropriate, see id. at 936-38, but are capable of producing much confusion in the standard of review area. Id. at 936 (citing Evan Tsen Lee, Principled Decision Making and the Proper Role of Federal Appellate Courts: The Mixed Questions Conflict, 64 S. Cal. L.Rev. 235, 239-45 (1991)).
DURHAM, J., and McIFF, District Judge, concur.